State Superintendent of Educ. v. Ala. Educ. Ass'n, an Ala. Nonprofit Corp.

• Decision Date: 25 October 2013
• Docket Number: 1110413.
• Citation: 144 So.3d 265
• Parties: STATE SUPERINTENDENT OF EDUCATION et al. v. ALABAMA EDUCATION ASSOCIATION, an Alabama nonprofit corporation, et al.
• Court: Alabama Supreme Court

144 So.3d 265

STATE SUPERINTENDENT OF EDUCATION et al.

v.ALABAMA EDUCATION ASSOCIATION, an Alabama nonprofit corporation, et al.

1110413.

Supreme Court of Alabama.

Oct. 25, 2013.

Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and James W. Davis, asst. atty. gen., for appellants Luther Strange, Dr. Thomas Bice, Susan Yvette Price, Scott Anderson, Ashley M. Rich, Robert T. Treese III, and Brian McVeigh.

Albert L. Jordan and Susan E. McPherson of Wallace Jordan Ratliff & Brandt, LLC, Birmingham; and Algert S. Agricola of Ryals, Plummer, Donaldson, Agricola & Smith, P.C., Montgomery, for appellants Governor Robert Bentley, Finance Director Marquita Davis, and Comptroller Thomas L. White, Jr.; and Cooper Shattuck, legal advisor to Governor Robert Bentley.

J. Cecil Gardner of The Gardner Firm, P.C., Mobile; Sam Heldman of The Gardner Firm, P.C., Washington, D.C.; and Robert D. Segall of Copeland, Franco, Screws & Gill, PA, Montgomery, for appellees Alabama Education Association, Alabama Voice of Teachers for Education, Pam Hill, Cathey McNeal, Jeff Breece, Chassity Smith, Dorothy Strickland, and Ronald Slaughter.

Robert W. Weaver of Quinn, Connor, Weaver, Davies & Rouco, LLC, Birmingham; Leslie J. Horton, Birmingham; and Douglas L. Steele of Woodley & McGillivary, Washington, D.C., for appellees International Association of Fire Fighters et al.

Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for amici curiae Alabama State Employees Association (“ASEA”) and Sea–Pac, formerly known as the State Employees Association Political Action Committee, in support of the Alabama Education Association (“AEA”) and the Alabama Voice of Teachers for Education (“A–Vote”).

PARKER, Justice.

The United States Court of Appeals for the Eleventh Circuit has certified two questions to this Court pursuant to Rule 18, Ala. R.App. P.

I. Facts and Procedural History

In Davis v. Alabama Education Ass'n, 92 So.3d 737 (Ala.2012), this Court summarized the facts underlying this litigation:

“Employees of the State of Alabama are paid through the office of the comptroller. Subject to certain conditions, § 36–1–4.3, Ala.Code 1975, provides that the comptroller may make deductions from the salary of a State employee upon the employee's request. Specifically, § 36–1–4.3(a), Ala.Code 1975, provides:

“ ‘The state Comptroller shall adopt statewide policies which provide for deductions from the salaries of state employees or groups of state employees whenever a request is presented to the state Comptroller by a group of participating state employees equal in number to at least 200 provided, however, that deductions being made as of April 23, 1985, shall continue to be made. The deductions shall be made at least monthly and shall be remitted to the appropriate company, association, or organization as specified by the employees. The deductions may be made for membership dues, and voluntary contributions, and insurance premiums. Any deduction provided under the provisions of this section may be terminated upon two months' notice in writing by a state employee to the appropriate company, association, or organization and to the appropriate payroll clerk or other appropriate officials as specified by the state Comptroller.’

“Section 36–1–4.4, Ala.Code 1975, prescribes other procedures relating to the salary deductions authorized in § 36–1–4.3:

“ ‘The policies adopted by the state Comptroller for deductions from the salaries of state employees or groups of state employees for employee organizations shall provide that the deductions for membership dues and voluntary contributions shall be made based on membership lists and forms provided by the employees' organization. Such lists are to be corrected and revised annually according to procedures to be established by the state Comptroller. Membership dues and voluntary contributions currently authorized shall continue on an annual basis for the current yearly period and for each succeeding yearly period unless the employee revokes the deduction in writing within 10 days of the next succeeding yearly period. Voluntary contributions may be revoked by giving a 30–day notice in writing. New authorizations shall be permitted on a monthly basis according to procedures to be established by the state Comptroller. Upon leaving state service whether by death, retirement, termination, resignation, leave of absence or other means, payroll deduction of dues and authorized voluntary deductions shall cease. When an employee returns to state service from an approved leave of absence or other temporary leave, payroll deductions and voluntary contributions shall resume unless the employee revokes the deductions in writing. When amounts have been correctly deducted and remitted by the state Comptroller, the state Comptroller shall bear no further responsibility or liability for subsequent transactions.’

“On July 1, 2010, the comptroller implemented a new policy regarding salary deductions. Under this new policy, the comptroller stopped executing salary deductions designated for contributions to [the Alabama State Employees Association Political Action Committee]; the comptroller continued making deductions designated for the payment of dues to the [Alabama State Employees Association]. Likewise, the comptroller stopped executing salary deductions to a political-action committee affiliated with the Alabama State Troopers Association. Portions of an employee's salary no longer deducted as a result of this policy change were included in the employee's paychecks.

“The comptroller's change in the manner of executing salary deductions caused the AEA [the Alabama Education Association] to inquire of the comptroller whether a similar policy change in deductions would be made as to the salaries of State employees who elected to have contributions deducted for the benefit of the AEA. In conjunction with this inquiry, the comptroller was made aware that a portion of the deductions then being made for the benefit of the AEA were in turn contributed by the AEA to A–VOTE [AEA's political-action committee, Alabama Voice of Teachers for Education]. Because the comptroller could not ascertain what portion of the deductions designated for the AEA were passed on to A–VOTE, the comptroller ceased executing all salary deductions designated for the AEA on September 1, 2010.

“The comptroller based the aforesaid changes in the manner of executing salary deductions on his interpretation of the provisions in §§ 36–12–61 and 17–17–5, Ala.Code 1975. Section 36–12–61, Ala.Code 1975, provides:

“ ‘It shall be unlawful for any officer or employee of the State of Alabama to use or to permit to be used any state-owned property of any character or description, including stationery, stamps, office equipment, office supplies, automobiles or any other property used by him, in his custody or under his control for the promotion or advancement of the interest of any candidate for the nomination or election to any public office of the State of Alabama.’

“As then codified, § 17–17–5, Ala.Code 1975, provided in part that ‘[n]o person in the employment of the State of Alabama ... shall use any state ... funds, property, or time, for any political activities.’

“....

“Subsequently, in a special session, the legislature enacted, and the governor signed into law on December 20, 2010, Act No. 2010–761, Ala. Acts 2010 (‘the Act’). The Act amended § 17–17–5, Ala.Code 1975, to explicitly state as follows:

“ ‘(a) No person in the employment of the State of Alabama[, a county, a city, a local school board, or any other governmental agency, whether classified or unclassified,] shall use any state, county, city, local school board, or other governmental agency funds, property, or time, for any political activities.

“ ‘(b) No person in the employment of the State of Alabama[, a county, a city, a local school board, or any other governmental agency] may arrange by salary deduction or otherwise for any payments to a political action committee or arrange by salary deduction or otherwise for any payments for the dues of any person so employed to a membership organization which uses any portion of the dues for political activity....

“ ‘....

“ ‘Any organization that requests the State of Alabama, a county, a city, a local school board, or any other governmental agency to arrange by salary deduction or otherwise for the collection of membership dues from persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall certify to the appropriate governmental entity that none of the membership dues will be used for political activity. Thereafter, at the conclusion of each calendar year, each organization that has arranged for the collection of its membership dues from persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency shall provide the appropriate governmental entity a detailed breakdown of the expenditure of the membership dues of persons employed by the State of Alabama, a county, a city, a local school board, or any other governmental agency and collected by the governmental entity. Any organization that fails to provide the required certifications, that reports any expenditures for political activity, or that files false information about political activity in any of its reports shall be permanently barred from arranging for the collection of its membership dues by any governmental entity. The Examiners of Public Accounts shall annually review a sample of at least 10 percent of the certifications filed with each governmental entity and report its findings to the appropriate governmental entity....’ ”92 So.3d at 739–43 (footnote omitted).¹

On February 25, 2011, the Alabama Education Association (“the AEA”), Alabama Voice of Teachers for Education (“A–VOTE”), and six members of the AEA, namely, Pam Hill, ...